United States v. Cibrian , 374 F. App'x 524 ( 2010 )


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  •      Case: 09-40048         Document: 00511060594         Page: 1     Date Filed: 03/24/2010
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    March 24, 2010
    No. 09-40048
    Charles R. Fulbruge III
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee
    v.
    JOSE CIBRIAN,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 2:08-CR-275-001
    Before JOLLY and DENNIS, Circuit Judges, and BOYLE,* District Judge.
    PER CURIAM:**
    Jose Cibrian appeals his 115-month sentence for federal firearms
    violations ordered to run concurrently with his state sentence for aggravated
    assault and consecutively to an unrelated state drug possession case. A state
    court had previously ordered the two state sentences to run concurrently.
    Cibrian argues that the federal sentence is illegal because it is impossible to
    *
    District Judge of the Northern District of Texas, sitting by designation.
    **
    Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
    R. 47.5.4.
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    No. 09-40048
    reconcile with the state court’s order that the two state sentences be served
    concurrently. We find that the sentence is legal despite its incompatibility with
    the state sentences and AFFIRM. Cibrian’s second contention is that the district
    court’s written judgment conflicts with its oral pronouncement at sentencing
    that she would adjust his federal sentence for time already served in state
    custody on the aggravated assault conviction. Because the sentencing record
    establishes that the district court’s intent is accurately reflected in its written
    judgment, we AFFIRM.
    I. BACKGROUND
    On June 7, 2007, Cibrian was arrested by the Corpus Christi, Texas police
    for threatening a woman with a handgun during an altercation in a motel room.
    Police searched the motel room and found a pistol that Cibrian admitted
    belonged to him. Because he is a convicted felon, Cibrian was arrested and
    placed in state custody.
    On August 24, 2007, a state court sentenced Cibrian to seven years in
    state prison for aggravated assault stemming from the motel room incident. That
    same day, the state judge imposed a seven year sentence on Cibrian for an
    unrelated cocaine prosecution. The state court ordered the two sentences to run
    concurrently. While serving the state sentences Cibrian was indicted in federal
    court as a felon in possession of a firearm under 
    18 U.S.C. §§ 922
     (g)(1) and 924
    (a)(2) in connection with the weapon found in the motel room. He was thereafter
    transferred to federal custody on a writ of habeas corpus ad prosequendum to
    face the federal charges.
    Cibrian pled guilty to the federal charges. For sentencing purposes, his
    base offense level was calculated at 24 due to his two prior convictions for violent
    felonies. He received a four-level increase for using a firearm in connection with
    the aggravated assault and a three-level decrease for acceptance of
    responsibility. His resulting total offense level was 25 with a criminal history
    category of VI. The guideline range for imprisonment was 110 to 137 months.
    2
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    The statutory maximum for the offense is 120 months. At his sentencing, the
    government requested a sentence of 110 months to run consecutively to the
    undischarged state sentences. Cibrian’s counsel asked the court to impose a
    “non-guideline” sentence by ordering both of the undischarged state sentences
    to run concurrently with the federal sentence. This prompted the district court
    to ask a probation officer whether ordering the possession of cocaine sentence to
    run consecutively to the federal sentence would result in a non-guideline
    sentence. The probation officer responded that for the sentence to fall within the
    United States Sentencing Guidelines it should be ordered to run concurrently to
    the undischarged sentence for aggravated assault under section 5G1.3(b) and
    concurrently, partially concurrently, or consecutively to the undischarged
    sentence for cocaine possession under section 5G1.3(c).
    The district court imposed a sentence of 115 months on the federal
    firearms charge and ordered the federal sentence to be served consecutively to
    the undischarged state prison sentence for cocaine possession. The judge did not
    reference the aggravated assault sentence when she imposed the sentence.
    Immediately after the court pronounced sentence, a probation officer present at
    the hearing asked the court whether she intended to impose a non-guideline
    sentence, to which the court responded “no.” The probation officer, presumably
    relying on section 5G1.3(b), then told the judge that she was required to run the
    federal sentence concurrently with the aggravated assault sentence, take into
    account the amount of time Cibrian had already served in state custody on the
    aggravated assault charge, and adjust the federal sentence accordingly. The
    judge responded that she “would be happy to do that” on the aggravated assault
    sentence.
    The subsequent written judgment correctly reflects the 115-month federal
    sentence ordered to be served consecutively to the cocaine case and concurrently
    with the aggravated assault sentence. The judgment does not, however, contain
    language adjusting the federal sentence for time served on the aggravated
    3
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    assault case. Instead, the judgment notes simply: “[i]t is noted that the
    defendant was in state custody from August 24, 2007 until September 9, 2008,
    when he was assumed into federal custody on a writ of habeas corpus ad
    prosequendum.”
    Cibrian appeals his sentence on two grounds. First, he maintains that his
    federal sentence is “illegal” or “legally impossible” to fulfill because it requires
    his federal sentence to run both concurrently and consecutively to two
    undischarged state sentences ordered to run concurrently. Next, he urges the
    Court to remand for entry of an amended judgment to reflect the adjustment the
    district court indicated it would make to his aggravated assault case.
    II. DISCUSSION
    A. Illegal Sentence
    1. Standard of Review
    As to Cibrian’s argument that his sentence is illegal, he has not preserved
    this issue for appeal. “A party must raise a claim of error with the district court
    in such a manner so that the district court may correct itself and thus obviate
    the need for our review.” United States v. Rodriguez, 
    15 F.3d 408
    , 414 (5th
    Cir.1994). Failing to properly object at sentencing waives the defendant’s right
    to full appellate review.    United States v. Krout, 
    66 F.3d 1420
    , 1434 (5th
    Cir.1995). In such cases, this court will review for only plain error. 
    Id.
    Here, the record demonstrates that Cibrian did ask the court to run his
    federal sentence concurrently with his two undischarged prison sentences. But
    at no time did he argue that failing to impose a concurrent sentence would result
    in an illegal sentence or give rise to in a sentence that was legally impossible to
    effectuate. Nor did Cibrian object to the district court’s expressed intention, at
    the close of sentencing, to abide by the probation officer’s advice and run the
    federal sentence concurrent with the aggravated assault conviction and
    consecutive with the cocaine conviction. Instead, Cibrian’s counsel concluded his
    4
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    sentencing remarks by objecting to the length of the sentence as greater than
    necessary under 18 U.S.C.§ 3553(a).
    Because Cibrian did not alert the court to the error of which he now
    complains, he effectively deprived the court of an opportunity to address the
    issue. Rodriguez, 
    15 F.3d at 414
     (5 th Cir. 1994), see also United States v. Sanchez-
    Hernandez, No. 08-40902, 
    2009 WL 3444777
     (5th Cir. (Tex.) Oct. 26, 2009),
    petition for cert. filed, (U.S. Jan. 21, 2010) (09-8733) (defendant’s request for
    concurrent sentences “in no manner alerted the district court that the
    [g]uidelines were being applied impermissibly, [thus] the court was not provided
    an opportunity to correct its error”).1 Consequently, our review of this ground
    will be for plain error. 
    Id.
    To establish plain error, Cibrian must make a showing that: (1) an error
    occurred, (2) that is clear or obvious, and (3) affected his substantial rights.
    United States v Cotton, 
    535 U.S. 625
    , 631-32 (2002); United States v. Garcia-
    Mendez, 
    420 F.3d 454
    , 456 (5th Cir. 2005). Upon this showing, an appeals court
    may exercise its discretion to remedy the error but only “if the error seriously
    affect[s] the fairness, integrity or public reputation of judicial proceedings.”
    Puckett v. United States, 
    129 S.Ct. 1423
    , 1429 (2009).
    2. Analysis
    Cibrian claims that the district court erred by imposing an illegal
    sentence because “it is impossible for the single federal sentence in this case to
    run both concurrently with and consecutively to the two simultaneous
    undischarged state sentences.”
    A sentence may, in fact, be illegal if it is “‘ambiguous with respect to the
    time and manner in which it is to be served, is internally self-contradictory,
    omits a term required to be imposed by statute, is uncertain as to the substance
    1
    The court cites to this unpublished opinion not for its precedential value but for its
    factual similarity to the issue addressed above.
    5
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    of the statute or is a sentence which the judgment of conviction did not
    authorize.’” United States v. Dougherty, 
    106 F.3d 1514
    , 1525 (10th Cir.1997)
    (quoting United States v. Wainwright, 
    938 F.2d 1096
    , 1098 (10th Cir. 1991).2
    “Criminal sentences must ‘reveal with fair certainty the intent of the court to
    exclude any serious misapprehensions by those who must execute them.’”United
    States v. Garza, 
    448 F.3d 294
    , 302 (5th Cir. 2006) (quoting United States v.
    Daugherty, 
    269 U.S. 360
    , 363 (1926)).               When a sentence is found to be
    ambiguous, it should be remanded for clarification in fairness to all concerned.
    United States v. Patrick Petroleum, 
    703 F.2d 94
    , 98 (5th Cir.1982). In Patrick
    Petroleum, where the sentencing transcript indicated the court had imposed
    $10,000 concurrent fines on each count and the maximum allowable fine was
    $1,000 per count, the case was remanded for clarification and re-sentencing. Id.;
    see also Garza, 
    448 F.3d at 302
     (an ambiguity in the court’s oral pronouncement,
    which was not clarified by the record, required remand for re-sentencing); and
    United States v. Cole, 241 Fed. App’x 216, 217 (5th Cir. 2007) (where a district
    imposed two 240-month sentences on a single count and then totaled the
    sentence at 365 months, the ambiguous sentence was vacated and remanded for
    clarification).
    Cibrian’s contention that his sentence is illegal rests upon his singular
    argument that his sentence, as imposed, is legally impossible to fulfill. However,
    he cites no controlling authority for this proposition. Instead, he relies upon a
    footnote in United States v. Henry, 
    709 F.2d 298
    , 308 n.16 (5th Cir. 1983), which
    2
    More broadly defined:
    An illegal sentence is one not authorized or directed by law. An illegal sentence
    is one that does not conform to or exceeds statutory limits, is not based on
    statutory authority, imposes multiple terms of imprisonment for the same
    offense, fails to conform to the oral pronouncement of sentence, is ambiguous,
    or otherwise violates the constitution or the law. Whether a sentence is illegal
    is determined by interpreting the applicable statute or constitutional provisions.
    21 AM. JUR. 2D Criminal Law § 764 (2009).
    6
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    stands for the legal principle that when two sentences cannot co-exist it “makes
    sense” for the appellate court to vacate both of them on appeal. It is unclear how
    this case supports Cibrian’s argument and, aside from the citation to the Henry
    footnote, Cibrian supplies no further insight. The only other case Cibrian refers
    us to is United States v. Contreras-Subias, 
    13 F.3d 1341
     (9th Cir. 1994), cited
    in his reply brief. In Contreras-Subias, the Ninth Circuit found that a mistake
    in the phrasing of the defendant’s plea agreement and in the sentence - contrary
    to the clear intention of the sentencing judge - resulted in an illegal sentence.
    Contreras-Subias, 
    13 F.3d at 1344
    .
    Neither Contreras-Subias nor Henry provide persuasive or binding
    authority here. For that matter, none of the above-cited cases from the Fifth,
    Ninth or Tenth Circuits are apposite. Cibrian’s sentence is not ambiguous,
    internally inconsistent, missing an essential statutory term or uncertain as to
    the substance of the applicable statute. Dougherty, 
    106 F.3d at 1525
     (quoting
    Wainwright, 
    938 F.2d at 1098
    ). As explained below, Cibrian’s sentence is fully
    sanctioned under federal law.
    
    18 U.S.C. § 3584
    (a) empowers a district court imposing a sentence upon
    a defendant who is already subject to an undischarged term of imprisonment to
    exercise its discretion to make the terms run concurrently or consecutively.
    Such discretion is to be exercised by the court in view of the sentencing factors
    contained in 
    18 U.S.C. § 3553
    (a). See 
    18 U.S.C. § 3584
    (b). Section 3553(a), in
    turn, requires the district court to take into account the applicable sentencing
    guidelines and their attending policy statements. See 
    18 U.S.C. § 3553
    (a)(4) &
    (5). Section 5G1.3(c) of the Sentencing Guidelines, which undisputedly applies
    to Cibrian’s sentence, provides that in cases “involving an undischarged term of
    imprisonment, the sentence for the instant offense may be imposed to run
    concurrently, partially concurrently, or consecutively to the prior undischarged
    term of imprisonment to achieve a reasonable punishment for the instant
    offense.” USSG § 5G1.3(c). The corresponding application notes provide district
    7
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    courts with additional guidance and flexibility in applying section 5G1.3(c) to
    factually complex cases. Application Note 3 states that in situations where a
    defendant may be “subject to multiple undischarged terms of imprisonment that
    seemingly call for the application of different rules,” the district court may
    “exercise its discretion in accordance with subsection (c) to fashion a sentence of
    appropriate length and structure it to run in any appropriate manner to achieve
    a reasonable punishment for the instant offense.” USSG § 5G1.3, cmt. n.3 (D)
    (emphasis added).
    Considered in concert, these sentencing provisions call for the sentencing
    judge to impose a reasonable sentence and imbue the court with considerable
    discretion in undertaking its task. Moreover, post-Booker,3 so long as the
    sentence is imposed within a properly calculated guideline, it is considered
    presumptively reasonable and is accorded great deference on review. United
    States v. Candia, 
    454 F.3d 468
    , 472-73 (5th Cir. 2006) (citing United States v.
    Alonzo, 
    435 F.3d 551
    , 554 (5th Cir. 2006)).
    Here, the district court acted well within the contours of its authority under
    the foregoing sentencing authority when it imposed a sentence of 115 months to
    run concurrently to the related undischarged sentence for aggravated assault and
    consecutively to the unrelated undischarged sentence for cocaine possession. The
    sentence is within the applicable guideline range (110-120 months) and less than
    the statutory maximum (120 months). Moreover, the sentence comports with §§
    3584(a) and (b). Lastly, the record reflects that the district court expressly
    considered the § 3553(a) factors in deciding Cibrian’s sentence.4 Cibrian’s
    sentence is thus presumptively reasonable as a matter of law and is to be
    accorded great deference by this Court on review.
    3
    United States v. Booker, 
    543 U.S. 220
    , 268 (2005).
    4
    The judge stated: “I should say also that I used the sentencing factors of 3553(a), and
    in my opinion I should have given [Cibrian] at least 120 months, but I recognized... [defense
    counsel’s] argument about acceptance of responsibility.” Tr. at 16.
    8
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    Against this backdrop of legal authority, Cibrian’s claim that the district
    court’s sentence constituted error, plain or otherwise, must fail. As discussed,
    Cibrian’s sentence is entirely lawful. His contention that the sentence is
    “impossible” to fulfill stems not from an inherent flaw on the face of the court’s
    sentencing papers, as in the above-cited cases, but from the very practical
    problems that arise in carrying out overlapping state and federal sentences in a
    dual sovereignty. In other words, the real problem driving Cibrian’s claim is not
    the lawfulness of the sentence as imposed but with the fact that it seemingly
    overrides the state court’s order that the two state sentences run concurrently.
    As addressed below, this happenstance does not render the sentence illegal.
    State and federal governments “may each impose a sentence upon a
    defendant based on the commission of a single act constituting offenses under
    both state and federal law.” United States v. Shillingford, 
    586 F.2d 372
    , 375 (5th
    Cir. 1978); Heath v. Alabama, 
    474 U.S. 82
    , 88-93 (1985). The fact that the
    resulting   sentences      may     conflict    is   a   well-recognized       by-product    of
    contemporaneous jurisdiction. See Alexander Bunin, Time and Again: Concurrent
    and Consecutive Sentences Among State and Federal Jurisdictions, Champion,
    March 21, 1997, at 34; see also McCarthy v. Doe, 
    146 F.3d 118
    , 120 (2d Cir. 1998).
    Still, certain principles have developed to minimize jurisdictional discord. For
    example, which sovereign proceeds first is normally, but not always, dictated by
    which of them has “primary jurisdiction” over the defendant. Primary
    jurisdiction, in turn, usually depends upon which sovereign is the first to attain
    custody.5
    5
    As one commentator explained it:
    The court that gains custody of a defendant first ...enjoys ‘primary jurisdiction’
    over the defendant. When a state court with primary jurisdiction has custody
    of a defendant, a federal court may ‘borrow’ the defendant from the state court
    on a writ of habeas corpus ad prosequendum. At that point, the federal court
    has present custody of, but not primary jurisdiction over, the defendant.
    Consequently, the federal court lacks jurisdiction to interfere with a state
    sentence because the state acquires primary jurisdiction for trial, sentencing
    9
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    Other rules for addressing state/federal sentencing clashes have developed
    through the federal case law. These cases, not surprisingly, often favor the
    federal courts. Goffette, supra, at 1059. For example, even though a state court
    may order its sentence to run concurrently with a federal sentence in a related
    case, the federal court is not bound by the state court’s order. Leal v. Tombone,
    
    341 F.3d 427
    , 429 n.13 (5th Cir. 2003). Instead, federal courts consider
    “concurrent sentences imposed by state judges [to be] nothing more than
    recommendations to federal officials.” 
    Id.
     The federal court is “free to turn those
    concurrent sentences into consecutive sentences by refusing to accept the [state]
    prisoner until completion of the state sentence.” 
    Id.
    Lastly, and not to be discounted in the maze 6 of authority affecting multi-
    jurisdictional sentencing, is the power of the Bureau of Prisons (BOP) by way of
    the Attorney General. The BOP - as opposed to the federal courts - is the entity
    authorized to determine where a federal sentence will be served, when it begins,
    and, in certain respects, how long it will last. 
    18 U.S.C. § 3621
    ; see United States
    v. Wilson, 
    503 U.S. 329
    , 337 (1992) (Attorney General, through the BOP,
    computes the amount of § 3585(b) credit after the defendant has begun to serve
    his sentence); United States v. Dowling, 
    962 F.2d 390
    , 393 (5th Cir. 1992) (“credit
    and incarceration. ... The state sentence is served first because the state
    has primary custody of the defendant...
    Erin E. Goffette, Sovereignty in Sentencing: Concurrent and Consecutive Sentencing of a
    Defendant Subject to Simultaneous State and Federal Jurisdiction, 
    37 Val. U. L. Rev. 1035
    ,
    1055-56 (2003).
    6
    Succinctly summing up the problem created by multi-jurisdictional sentencing, one
    court observed:
    [t]he statutory scheme involving concurrent versus consecutive [s]tate and
    [f]ederal sentences, credit for time served, and the authority of the Courts,
    versus the authority of the BOP, in making those decisions, has been described
    as a “labyrinth,” which even the BOP considers as “probably the single most
    confusing and least understood sentencing issue in the Federal system.”
    United States v. Smith, 
    101 F. Supp.2d 332
    , 334, 347 (W.D. Pa. 2000)).
    10
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    awards are to be made by the Attorney General, through the Bureau of Prisons,
    after sentencing”); Goffette, supra, at 1057-59 (citing McCarthy v. Doe, 
    146 F.3d 118
     (2d Cir. 1998) and Del Guzzi v. United States, 
    980 F.2d 1269
     (9th Cir. 1992)).
    For instance, the BOP may refuse to accept a state prisoner into federal custody
    until the state sentence is fully discharged. This refusal could operate to increase
    the expected length of the state-imposed sentence if the state court ordered it to
    run concurrently with the federal sentence. Id. at 1057-58; see, e.g., Leal, 
    341 F.3d at 428-29
    ; Bloomgren v. Belaski, 
    948 F.2d 688
    , 691 (10th Cir. 1991). Suffice
    it to say that the complexities of sentencing sequences in our dual sovereignty are
    well-known throughout our circuits and the resulting conflicts between state and
    federal courts well-documented in the case law. How this bears upon Cibrian’s
    case is discussed next.
    As it stands, the state court has primary jurisdiction over Cibrian. Barring
    any accord between the state and federal authorities,7 he will remain in state
    custody until his two state sentences are discharged.8 Assuming Cibrian remains
    in state custody until his state sentences are discharged, he will be delivered to
    federal custody with no “undischarged” state sentences to serve. United States v.
    Labeille-Soto, 
    163 F.3d 9398
     (2d Cir.1998) (once a state sentence is fully
    discharged, it cannot be made to run concurrently with another sentence). As a
    practical matter, this nullifies the federal court’s order that Cibrian’s federal
    firearms sentence run concurrently with his state aggravated assault conviction.
    This eventuality, however, does not render the federal sentence illegal as argued
    7
    See Sadowski, supra, at 49 (listing the “several ways in which the [BOP] may ‘accept’
    a prisoner in primary state custody.”). Moreover, as mentioned above, one jurisdiction can
    relinquish custody over a mutually sought-after defendant. Id. at 48. These contingencies
    presume agreement between the sovereigns.
    8
    Absent agreement, federal courts cannot compel state courts to surrender primary
    jurisdiction over a mutually sought-after defendant. United States v. Warren, 
    610 F.2d 680
    ,
    684 (9th Cir. 1980). Nor can their state counterparts exercise such authority when the roles
    are reversed. Leal, 
    341 F.3d at
    429 n.13.
    11
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    by Cibrian. There is no inherent flaw in the federal sentence. The irreconcilability
    of Cibrian’s federal and state sentences is a well-documented practicality of our
    system of contemporaneous jurisdiction. In this instance, the federal sentence is
    partially foiled, in other cases, it is the state sentence that suffers the intrusion.
    In no case cited by Cibrian or found by us is the resulting sentence rendered
    illegal.9 Cibrian, therefore, has failed to establish, any error, plain or otherwise,
    committed by the district court in imposing sentence.
    B. Conflicting Oral Pronouncement and Written Sentence
    Cibrian’s second argument is that his sentence should be vacated because
    the district court’s written judgment conflicts with its oral pronouncement at
    sentencing. (Cibrian’s Br. 18-21.) He claims that the district court orally agreed
    to adjust his sentence for time served, but its written judgment did not reflect the
    adjustment.
    During its formal pronouncement of sentence, the district court stated that
    Cibrian was to be imprisoned for 115 months to be served consecutively to his
    prior sentence for cocaine possession.10 A probation officer present at the hearing
    asked the court if it had intended to impose a “non-guideline sentence” to which
    the court responded “no.” The officer proceeded to erroneously instruct the court,
    presumably under § 5G1.3(b)11 , that it was required to take into account the
    amount of time Cibrian had already served in state custody on the aggravated
    assault charge and adjust the federal sentence accordingly. The court responded
    that it “would be happy to do that” as to the aggravated assault sentence. The
    9
    We are well aware of the circuit split over the authority of a federal court to order its
    sentence to run consecutively with a yet-to-be imposed state sentence. Our analysis does not
    concern that eventuality. See United States v. Quintana-Gomez, 
    521 F.3d 495
    , 497 n. 2 (5th
    Cir. 2008) (citing United States v. Brown, 
    920 F.2d 1212
    , 1217 (5th Cir. 1991)).
    10
    The judge did not allude to the state aggravated assault case.
    11
    The probation officer’s suggestion that § 5G1.3(b) applied to the sentencing decision
    was incorrect. Because different rules apply to each of Cibrian’s two undischarged sentences,
    § 5G1.3 © and Application Note 3 apply to the entire sentencing decision.
    12
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    subsequently entered written judgment reflected the imposition of the115-month
    federal sentence, that it was to run concurrently with the state aggravated
    assault case and consecutively with the cocaine possession case, but was devoid
    of any mention of the adjustment.
    In situations where there is a clear conflict between the court’s written
    judgment and the oral pronouncement of sentence, the oral pronouncement
    controls. United States v. De La Pena-Juarez, 
    214 F.3d 594
    , 601 (5th Cir. 2000).
    However, when there is simply ambiguity between the two, this Court must
    review the record to ascertain the district court’s intent. 
    Id.
     The district court’s
    intention is what determines the final sentence. 
    Id.
     Here, there is an ambiguity
    rather than a clear conflict between the formal pronouncement and its written
    counterpart. The district court made no reference to a sentence adjustment
    during its pronouncement of sentence. Nor is it alluded to in the judgment. It was
    not until after the court had announced its sentence that the probation officer
    mistakenly advised the court that it had to comply with section 5G1.3(b) to
    sentence within the Sentencing Guidelines and the court agreed to make the
    adjustment.
    A brief review of the record readily resolves the ambiguity. As an initial
    observation, it is evident from the sentencing record that the district court
    intended to impose a sentence within the Sentencing Guidelines. After the oral
    pronouncement of sentence, a probation officer asked the court whether it
    intended to “impose a non-guideline sentence” to which it plainly replied “no.”
    The sentencing record is also quite clear that the district court’s agreement, post-
    sentencing, to make an adjustment for time served was based upon its reliance
    on erroneous advice suggesting that section 5G1.3(b) was the applicable
    Sentencing Guideline under these circumstances.
    As discussed above, section 5G1.3(c) of the Sentencing Guidelines applies
    to Cibrian’s sentence. Furthermore, under the amended version of section
    13
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    5G1.3(c), the court could not adjust Cibrian’s sentence without making a
    downward departure. A 2003 amendment to the section 5G1.3(c) Application
    Notes precludes a sentence adjustment for time served on a related undischarged
    sentence. The amended Application Notes provide that a sentencing court may
    only make an adjustment via a downward departure in “extraordinary cases.”
    USSG § 5G1.3, cmt. n. 3. There is no indication that the district court considered
    Cibrian’s case one of the few “extraordinary” cases calling for such treatment.
    Moreover, the court’s comments on the record make abundantly clear that it did
    not want to downwardly depart in Cibrian’s case. In sum, the district court’s
    intent to sentence Cibrian precisely as the written judgment reflects is clear from
    the record. His second ground for relief has no merit.
    III. CONCLUSION
    For the reasons set out above, we find that the district court properly
    exercised its discretion in accordance with section 5G1.3(c) of the Sentencing
    Guidelines and that the written judgment reflects the district court’s true intent
    in sentencing. Accordingly, the judgment of the district court is AFFIRMED in
    its entirety.
    14
    

Document Info

Docket Number: 09-40048

Citation Numbers: 374 F. App'x 524

Judges: Jolly, Dennis, Boyle

Filed Date: 3/24/2010

Precedential Status: Non-Precedential

Modified Date: 11/5/2024

Authorities (23)

Leal v. Tombone , 341 F.3d 427 ( 2003 )

Puckett v. United States , 129 S. Ct. 1423 ( 2009 )

United States v. Daugherty , 46 S. Ct. 156 ( 1926 )

United States v. Rodriguez , 15 F.3d 408 ( 1994 )

United States v. Cotton , 122 S. Ct. 1781 ( 2002 )

United States v. Smith , 101 F. Supp. 2d 332 ( 2000 )

United States v. Don Dowling , 962 F.2d 390 ( 1992 )

United States v. Quintana-Gomez , 521 F.3d 495 ( 2008 )

united-states-v-nathan-j-warren-sr-united-states-of-america-and-state , 610 F.2d 680 ( 1980 )

John J. McCarthy v. John Doe, Director of the Federal ... , 146 F.3d 118 ( 1998 )

united-states-v-richard-bullock-henry-aka-imari-abubakari-obadele , 709 F.2d 298 ( 1983 )

United States v. Jose Leonardo Contreras-Subias , 13 F.3d 1341 ( 1994 )

United States v. Alonzo , 435 F.3d 551 ( 2006 )

David E. Bloomgren v. Anthony Belaski, Warden United States ... , 948 F.2d 688 ( 1991 )

United States v. Dougherty , 106 F.3d 1514 ( 1997 )

United States v. Welton Brown , 920 F.2d 1212 ( 1991 )

United States v. Garcia-Mendez , 420 F.3d 454 ( 2005 )

United States v. Franklin De La Pena-Juarez, Also Known as ... , 214 F.3d 594 ( 2000 )

united-states-v-douglas-william-krout-aka-mark-william-danford-aka , 66 F.3d 1420 ( 1995 )

United States v. Wilson , 112 S. Ct. 1351 ( 1992 )

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